USA – CT – HARLIWICH V HARLIWICH HARLIWICH v HARLIWICH (Osmers) Mother takes the child to the United States. The court ordered the child returned. Ruled New Zealand was the habitual residence and that the removal was wrongful.
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Harliwich v Harliwich (Conn. Super. 1998)No. FA 9868306S
29 International Abduction [USA 1998]
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Superior Court of Connecticut.
Stephen L. HARLIWICH,
v.
Karla A. HARLIWICH (Osmers).
No. FA 9868306S.
Dec. 3, 1998.
Memorandum of Decision
KLACZAK.
001 This is an application brought pursuant to the
provisions of the Hague Convention on the Civil Aspects of
International Child Abduction (hereinafter “Hague
Convention” or “Convention”), which has been implemented in
the United States by 42 U.S.C. 11601, et seq. The applicant,
Stephen L. Harliwich, seeks to have Dean Harliwich, the
eleven year old son of the parties returned to New Zealand.
002 Both the United States and New Zealand are signatories
to the agreement which, as between these two countries, has
been in effect since October 1, 1991.
003 The Convention provides for the prompt return of a
child wrongfully removed, or wrongfully retained, where both
that country (the United States in this case) and the
country of the child’s habitual residence (New Zealand in
this case) are parties to the Convention. The child must be
under the age of 16 and the return of the child is mandatory
(subject to a few narrow exceptions), as long as the
petition is filed within one year from the date of the
wrongful removal or detention.
Factual Background
004 The parties were married in New Zealand on April 24,
1984. Their son Dean was born on December 1, 1987. In 1990
or 1991 the parties were divorced in New Zealand. Since that
time Dean’s primary residence was with his mother
(respondent) and the father (petitioner) regularly exercised
visitation, usually during school holidays. The visitations
were for varying lengths of time depending on the length of
the school vacation, but was as long as three weeks on at
least one occasion. The petitioner lived approximately three
hours away, in driving time. At all relevant times, until on
or about July 22, 1998, both parties and the minor child
were residents of New Zealand. On or about July 22, 1998,
the respondent moved to the United States with Dean,
primarily to be with a man she met through the Internet.
Wrongful Removal or Retention
005 The purpose of the Convention is to (a) “secure the
prompt return of children wrongfully removed or retained in
any contracting state; and (b) to ensure that rights of
custody and access under the law of one contracting state
are effectively respected in other contracting states”
(Article 1).
006 Article 4 provides that the “Convention shall apply to
any child who was habitually resident in a contracting state
immediately before any breach of custody or access rights.”
007 Article 5 defines “rights of custody” as including
“rights relating to the care of the person of the child and,
in particular the right to determine the child’s place of
residence.” It further defines “rights of access” as
including “the right to take a child for a limited period of
time to a place other than the child’s habitual residence.”
008 Article 3 provides as follows:
The removal or the retention of a child is to be
considered wrongful where–
(a) it is in breach of rights of custody
attributed to a person, an institution or any
other body, either jointly or alone, under the
law of the State in which the child was
habitually resident immediately before the
removal or retention; and
(b) at the time of removal or retention those
rights were actually exercised either jointly or
alone, or would have been so exercised but for
the removal or retention.
The rights of custody mentioned in subparagraph
(a) above, may arise in particular by operation
of law or by reason of a judicial or
administrative decision, or by reason of an
agreement having legal effect under the law of
that State.
009 It is clear that the child was habitually resident in
New Zealand immediately prior to his removal to the United
States. The Court finds his removal and/or retention in the
United States was wrongful as both a breach of the
applicant’s right to determine the child’s place of
residence as well as the applicant’s right of access.
010 At the hearing on the application, the respondent
testified that she told the petitioner approximately 1 to 1
1/2 weeks before July 22nd that she was moving to the United
States; that the applicant, although expressing some anger,
said he didn’t care if she did. While the applicant did not
attend the hearing, he was represented by counsel (as was
the respondent and the minor child, an attorney having been
appointed to represent the child). His application made
under the Convention provisions was provided to the Court.
In that document the applicant denies having knowledge or
giving consent to the removal of Dean to the United States.
011 The petitioner has established that he was exercising
custodial and access rights as defined in the Hague
Convention, thus the removal and retention was unlawful.
Return of the Child to New Zealand
012 The Convention requires that a child wrongfully
removed or restrained be returned forthwith unless the
respondent can establish, under Article 13 or Article 20
that he should not be.
013 Article 20 provides for non-return if fundamental
principles of the requested country relating to the
protection of human rights and fundamental freedoms would be
violated. The respondent makes no such claim and the
exemption of Article 20 is clearly not applicable.
014 Articlle 13 provides as follows:
Notwithstanding the provisions of the preceding
Article, the judicial or administrative
authority of the requested State is not bound to
order the return of the child if the person,
institution or other body which opposes its
return establishes that–
(a) the person, institution or other body having
the care of the person of the child was not
actually exercising the custody rights at the
time of removal or retention, or had consented
to or subsequently acquiesced in the removal of
retention; or
(b) there is a grave risk that his or her return
would expose the child to physical or
psychological harm or otherwise place the child
in an intolerable situation.
The judicial or administrative authority may
also refuse to order the return
SDUNumber6SDUNumber6of the child if it finds
that the child objects to being returned and has
attained an age and degree of maturity at which
it is appropriate to take account of its views.
In considering the circumstances referred to in
this Article, the judicial and administrative
authorities shall take into account the
information relating to the social background of
the child provided by the Central Authority or
other competent authority of the child’s
habitual residence.
015 The respondent must prove by clear and convincing
evidence, that one or more of the provisions of Article 13
are applicable in order to negate the return of the child.
016 Her argument that the petitioner had consented to the
removal or retention is far from clear and convincing. The
petitioner acted promptly to have the child returned and, as
noted disputes the allegations that he consented to the
removal. Obviously he does not acquiesce in the retention.
017 There was no substantial evidence that the child’s
return would expose him to physical or psychological harm or
otherwise place him in an intolerable situation.
018 While there was some testimony from the respondent
that the child is resistant to visitation with his father,
there was no evidence that his age (11 years as of December
1, 1998) and his level of maturity should impact on this
issue.
Conclusion
019 For the foregoing reasons, it is ordered that the
minor child Dean Harliwich be returned to New Zealand
forthwith. It is appropriate that the courts of New Zealand
determine issues of custody and access. The respondent shall
pay the costs of transportation for Dean. If she elects not
to return to New Zealand with the minor child she shall be
responsible for arranging suitable and appropriate escort
for the child.
020 Article 26 of the Convention provides for the award of
counsel fees. Counsel for the petitioner and the minor child
may motion the Court for an award of counsel fees within 30
days if they desire to do so.